The University of Illinois Urbana-Champaign (UIUC) Freedom-of-Information-Act (FOIA) office has been in the news of late, the most recent part of UIUC to be scrutinized in light of the Salaita “firing”/“non-hiring” debacle.1 Specifically, Salaita’s lawyers have filed suit against the UIUC-FOIA office,2 claiming that UIUC-FOIA failed to 1) even timely respond to much less satisfy a request for a whole raft of public documents relating to Salaita, and 2) also failed to timely respond to much less provide a response to a significantly narrowed FOIA request for a more limited set of these documents.3
For its part, the UIUC-FOIA office has claimed that such a request would require a search of 8,000–10,000 documents, and is therefore “unduly burdensome,” a category of search which UIUC-FOIA is, under law, allowed to per se reject.
What’s interesting to me is how this battle recapitulates my own struggles to pry public information out of the UIUC-FOIA office, which seems to feel it has as its duty the consistent and continual obstruction of providing public information. That is, it sees its duty as the consistent and continual frustration of the purpose for which it exists and receives a healthy dose of taxpayer money.
Since that sounds like rather a grandiose claim, let me fill in some of the details below.
1. FOIAs are up there in Illinois rights along with Apple Pie, Motherhood and Deep Dish Pizza.
If you have any doubts about this, let me quickly put them to rest — Illinois FOIA rights aren’t just important, they’re in fact enshrined in an act of Illinois law that puts them on the level of Apple pie, Motherhood and Chicago pizza. Thus 5 ILCS 140/14 states, in part:
Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.
The General Assembly hereby declares that it is the public policy of the State of Illinois that access by all persons to public records promotes the transparency and accountability of public bodies at all levels of government. It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act.
2. Even though access to FOIA information in Illinois is supposed to be an inalienable right, there’s been a gap between theory and practice the size of the Grand Canyon.
Given the language of 5 ILCS you’d think that state agencies would take their FOIA duties as seriously as the fight against zebra mussels or the Asian carp.
Unfortunately, you’d be wrong. Instead, violations of the FOIA law have been so flagrant that, for a roughly year-long period Illinois had in place an amendment to its FOIA law that required a public body to obtain pre-authorization from the Attorney General’s office for certain kinds of FOIA exemptions that were otherwise routinely abused:
From January 1, 2010 through August 26, 2011, when a public body intended to deny a FOIA request in whole or in part by asserting that the records were exempt from disclosure under subsection 7(1)(c ) or 7(1)(f) of FOIA, the public body had to provide written notice of the intent to deny to the Public Access Counselor. Subsection 9.5(b) of FOIA, 5 ILCS 140/9.5(b), provided for this process. We referred to this process as seeking pre-authorization from the Public Access Counselor to rely on one of these exemptions.5
Specifically, pubic agencies were in the habit of claiming information was exempt from disclosure as “personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” (7c).6
Alternatively/additionally, public agencies found the 7f “preliminary drafts” exemption7 equally useful for the purposes of keeping embarrassing public information from the eyes of the public. After all, how hard is it to claim that the information in an email is “predecisional” and therefore exempt from disclosure under a public policy which seeks to encourage the free exchange of information as part of the non-public decision-making process.8
To summarize, whether by claiming “personal information” (7c exemption) or a “preliminary draft” (7f exemption), public agencies had become so good at blatant violations of the Illinois FOIA law that even the Illinois legislature was motivated to sit up and take some action. In this case modification of the FOIA law to require pre-authorization for claims to 7c and 7f exemptions.
Alas, this step forward was all too soon rolled backwards. The specific claim was that pre-authorization interfered with the more important business of appeal reviews conducted by the Attorney General’s office:
In the past two years, requests for information were delayed exponentially as governments flooded Madigan’s office with these pre-authorization requests. Bauer [a spokeswoman for Illinois Attorney General Lisa Madigan] said these types of requests from government accounted for more half of the public access office’s workload each year.9
Perhaps. But of course it’s equally tempting to think there was a strong desire on the part of government to shift the burden of obtaining public information back onto the backs of the public. As I learned in law school, a lot of the biggest changes in law that have led to a more just system were based on evidentiary changes, on who had the burden of proof. If the public body has to obtain prior permission to withhold information, it’s much harder for it to do so.
On the other hand, if withholding is automatic and it’s the public that has to pursue the information … well, the outcome is pretty much what you’d expect.
3. The UIUC-FOIA office’s special place as a habitual violator of Illinois FOIA law.
As I said above, you’d be forgiven for thinking that, since Illinois’s enshrined the availability of public information via FOIA filings up there with other rights of the utmost criticality to its citizens, all Illinois agencies would be doing their utmost to render unto the public that (information) which is the property of the public.
But of course this thinking of yours would be wrong, at least as far as UIUC-FOIA goes. Thus in 2011 the Chicago Tribune ran this shocker of a quote about UIUC-FOIA’s respect for the FOIA law:
“The University of Illinois steadfastly refuses to comply fully and completely with (Freedom of Information Act) laws and to supply the public with doc– uments it knows are public,” Ann Spillane, [Attorney General] Madigan’s chief of staff, said last week. She said the U. of I. is among the agencies that “repeatedly disobey the law.“10
Now you might think that UIUC-FOIA continues to violate the FOIA law by inappropriately claiming exemptions for “personal information” (7c) or for materials that constitute “preliminary drafts” (7f). And of course you’d be right.
Specifically, although I haven’t sat down to review the rulings by the Public Access Counselor’s (PAC’s) office of the Illinois AG to see exactly how many of their decisions about UIUC-FOIA were on these topics, I’d guess the majority of the cases are on these two claims to FOIA-exempt material.11
But apparently when you’re an office of UIUC you end up aiming higher than merely run-of-the-mill obfuscation. Why not shoot higher? Why not go beyond mere claims to 7c and 7f exemption, and instead set up a system that allows absolutely no accountability for your actions … or inactions?
4. How you’d think a FOIA system at a large public university might be structured.
I realize I’ve never designed a system for responding to FOIA requests — frankly, it’s not my bag, baby. But it would seem to be a pretty straightforward thing to do, especially given the time and effort spent by Illinois to train FOIA officers and offices on how to respond in a timely and legal manner. Consider, for example, this 2011 press release from the Illinois AG’s office:12
“Sunshine Week serves as a reminder of the importance of the public’s right to know how their tax dollars are being spent,” said Attorney General Madigan. “We have made important steps forward in ensuring more government transparency by strengthening the law. Thousands of government officials have been trained in their responsibilities for providing public records and providing people with access to government meetings. And in cases where the process does not work, the Public Access Counselor’s office is helping to pry open public records and meetings.”
In conjunction with Sunshine Week, Attorney General Madigan released new guidelines to help both the public and law enforcement agencies across the state to determine when documents should be made public. Madigan said questions on how FOIA applies to law enforcement records were among the top concerns raised with the Public Access Counselor’s Office last year.
Given this amount of training, how hard could the process be? You have:
- An address/email where you receive requests;
- People who make sure the timing on responses is followed;
- Someone(s) who determines whether the request can be initially processed in an automated fashion — you know, given a request for emails, use the email search capability to conduct a search on a keyword or keywords;
- If the request can’t be initially processed using an automated (e.g., email search) system, determine what standard document repositories there and search those;
- Once the automated search or manual search (or combination) is/are performed, review the collected documents for information exempted from disclosure under one or more sections of the FOIA law;
- Redact/withhold those exempted sections;
- Supply all the materials collected, redacted or withheld as necessary; and,
- Once you have this system working, set it up as a written standard operating procedure (SOP) so that no one can claim that you’re gaming the system by varying how you respond to FOIAs as a function of how much you want to reveal or withhold.
5. Theory versus Practice (1) — Or, did you know that the UIUC-FOIA office is apparently unable to search the UIUC email system?
In my above back-of-the-envelope plan for a FOIA response system I said that automated retrieval of potentially relevant documents made sense as a first step to answering queries. So for example, assuming a large percentage of queries are for emails, the FOIA system would be set up to search emails for keywords. That couldn’t be hard, after all email systems in at least rudimentary form date back to 1962,13 and any/all modern systems have extensive search capabilities.
Or so you’d think. But apparently this isn’t the case for UIUC, which, despite the fact that it’s internationally known for its computer prowess, according to the UIUC-FOIA office has an email system that isn’t searchable. Or at least isn’t searchable by mere mortals. Consider what UIUC-FOIA told the Attorney General’s (AG’s) office in their Response to an appeal I’d made to the AG’s office about a UIUC non-responsive FOIA:
The University has approximately 100,000 students and employees across its campuses. The University’s information technology departments are not able to a run query across all email accounts for a keyword or the name of a person without unduly disrupting operations. For the UIUC campus alone, the search itself would take a week to run and it would take 18–24 months to create a report. This is the reason we asked Dr. Scheinman to narrow his request to documents from a specified, limited number of individuals or offices.14
Also consider this excerpt from a response of UIUC-FOIA to a FOIA request made by the UIUC student newspaper, the Daily Illini:15
Your request for documents and information listed in the second point of your email is considered unduly burdensome to the University, inasmuch as the request would unduly burden the public body by requiring a search of thousands of email accounts, including the accounts of students, at the Urbana campus alone. Creating a report to search these accounts for keywords would take 18–24 months. The search itself would take over a week to run. The collection, review, and processing of these records would take a substantial amount of time as well. Given the short timeframe provided by FOIA and the limited staff available to perform such collection, review and processing, compliance with your request would unduly burden the University and its operations.
6. Theory versus Practice (2) — Well, maybe UIUC-FOIA actually can search at least parts of the UIUC email system … but, if so, they won’t tell you how much searching voodoo they can do, much less how much voodoo they actually do do.
Now, a close reading of UIUC-FOIAs verbiage might make you think that, although UIUC-FOIA can’t search the whole email system, they actually can search parts of it, and that they’re more than willing to do so as long as you work with them to “refine” your search.
Yes indeedy, you might think that. And maybe you’d be right — but if that’s the case, don’t expect to find out if it’s true from UIUC-FOIA.
I can prove that statement, by the way — thus I reproduce below an email I got from UIUC-FOIA after I’d gotten so angry at their behavior that I wrote to find out if they could search anything at all, or if they were just throwing requests over the proverbial fence and letting people self-report the results:
Dear Dr. Scheinman:
I write to respond to five of your sixteen Freedom of Information requests dated and received in my office on June 4, 2014, in which you requested:
“11. Please inform me whether there was any attempt made by UI FOIA or legal to confirm the statement by Mr. Durack regarding the absence of any emails on his UI account that refer to me. [14–406]
12. Please inform me whether any independent searches of the UI email system were performed; if not, please inform me why this was not done. [14–407]
13. Please inform me whether it is your usual practice to have people identified as possibly having productive documents *self-report* the presence or absence of those documents. [14–408]
14. UI FOIA has previously stated that it had no standard search procedure for responding to FOIA requests. Please inform me whether you have any capacity to search the UI email system, and if so, the exact details of what you are able to search. [14–409]
15. Please inform me why you limited the request of Mr. Durack to that single email account, and why you did not ask him to produce all correspondence relating to me that he made during university business.” [14–410]
These requests are denied as they are not in proper form. Section 3(a) of FOIA provides, “Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act.” (5 ILCS 140/3(a)). (Emphasis added). The Act further provides that it is “not intended to create an obligation on the part of any public body to maintain or prepare any public record which was not maintained or prepared by such public body at the time when this Act becomes effective, except as otherwise required by applicable local, State or federal law.” (5 ILCS 140/1). (Emphasis added).
Your FOIA requests are not seeking a public document; instead, you are asking the University to provide a detailed explanation. In Kenyon v. Garrels, the 4th District Illinois Appellate Court found that “requests for information that did not identify the documents to be produced or made available was not in proper form.” 184 Ill. App. 3d 28, 33 (Ill. App. Ct. 4th Dist. 1989). The court went on to say, FOIA “does not compel the agency to provide answers to questions posed by the inquirer.” Kenyon, 540 N.E.2d at 13 (citing Krohn v. Department of Justice (D.C. Cir. 1980), 628 F.2d 195).16
So there you go. UIUC-FOIA is very happy to admit that they can’t search the entire email system (not that I asked them to search the entire system); but they also won’t tell anyone what they can search, or how they search, because to do so would be answering an improperly phrased FOIA request.
7. An exegesis of UIUC-FOIA’s exquisitely detailed SOP for responding to FOIAs — ha ha ha.
One of my father’s regular admonitions to me was “Illegitimi non carborundum,” Eric Partridge’s invented latin phrase for “Don’t let the bastards grind you down.“17 In the pursuit of my father’s memory I therefore engaged in what, in the bright glow of daylight, can only be said to have been an act of true masochism on my part. That is, I sent the following FOIA request to UIUC-FOIA:18
20140507_1. Please provide me with an answer to the following question: does the UI have *any* standard procedures, whether written or oral, that it follows in responding to FOIAs?
20140507_2. I repeat #1 and ask that, if the answer is yes, that I be provided with either copies of all such documents or reference to a site or sites where I may obtain these documents.
PLEASE NOTE THAT I AM FILING THE ABOVE TO AS *SEPARATE* FOIAS, IN ORDER THAT UIUC-FOIA/LEGAL BE PRECLUDED FROM BUNDLING THE TWO *SEPARATE* REQUESTS TOGETHER IN ORDER TO DENY BOTH.
I UNDERSTAND THAT MULTIPLE SEPARATE FOIA REQUESTS WILL ULTIMATELY TRIGGER A RESETTING OF THE “MULTIPLE-FILER” CLOCK. I ACCEPT THIS DESIGNATION WITH PLEASURE AND WITH PRIDE, SINCE IT APPEARS THE ONLY WAY TO GET ANSWERS TO MY FOIA REQUESTS.
Thank you for your attention to these two separate FOIAs.
Slightly over a month later, I got an email from UIUC-FOIA with a single page attachment that, they said, constituted their standard procedure for responding to FOIA filings. What follows is this standard procedure in its glorious entirety:
FOIA processing at the University of Illinois:19
- FOIA request for public records is received in University Relations
- FOIA request logged and assigned to coordinator for processing
- Coordinator undertakes collection process
- Coordinator receives records, compiling into manageable files/PDFs for review
- Coordinator reviews records and marks exempt and non-responsive materials
- Request and reviewed records submitted for review to Assistant Director for FOIA Administration
- Assistant Director conducts review, consulting with other University staff as necessary
- Correspondence Guidelines
a. Day 5: Issue response or extension letter
b. Day 10: Issue response
c. Day 21: For commercial or recurrent requesters, issue response or notice letter of estimated date for production of records20
7. Yes, Virginia, UIUC-FOIA one-ups the NSA in forthcomingness.
So there you have it folks, a thoroughly explicated procedure, one that reminds me of that great cartoon of the physicst’s blackboard proof that covers the board with equations and, in the middle, has an arrow with the phrase above it “then a miracle occurs.“21
In this case the miracle is what’s packed into #3 of UIUC-FOIAs incredibly precise description — “Coordinator undertakes collection process.” And what an undertaker that coordinator is … buried in those four words is all that searching and contacting and gathering that UIUC-FOIA apparently thinks doesn’t deserve to be written down as a standard procedure, much less conveyed to the world outside their doors.
If you detect a hint of sarcasm, please understand something — all of this would be funny, were it not for the fact that the outcome is the systematic suppression of public information by a university that, last time I checked, was still a public entity.
But that’s enough on this for now. Trust me, though, I have a lot more to say on the subject.
